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24 Jun 14 Alleged victim of identity fraud “dissatisfied” with objection decision - Van Gestel

The Administrative Appeals Tribunal has held that a taxpayer who claimed to be the victim of identity fraud in relation to BASs apparently lodged in his name was properly “dissatisfied” with the Commissioner’s objection decision within s 14ZZ(1)(a)(i) of the Taxation Administration Act 1953, and the Tribunal therefore had jurisdiction to deal with the taxpayer’s application for review of the objection decision.

Two BASs had been lodged claiming net refunds of input tax credits and fuel tax credits. The refunds were paid into third party bank accounts. Following an audit, the Commissioner discovered that the taxpayer claimed that he was not carrying on a business, and denied lodging the BASs. The taxpayer said he did not supply the names of the third party bank accounts or receive the money that was refunded. He claimed he was mystified as to how the payments came to be made. He said he had been the victim of identity fraud, and that the Commissioner had been taken in by a fraudster as a result of shortcomings in internal processes. The taxpayer said the Commissioner should pursue the fraudster rather than taking the easy option of attempting to recover the monies from the taxpayer.

The taxpayer applied to the Tribunal for review of the Commissioner’s objection decision to the effect that the taxpayer should repay the refund amounts. The Commissioner argued that the taxpayer was not a person “dissatisfied” with the objection decision, within s 14ZZ, and that therefore the Tribunal had no jurisdiction to hear the taxpayer’s application for review.

The Tribunal held that the taxpayer was properly dissatisfied with the objection decision in this case. A review of that decision would necessarily extend to its factual basis. The factual basis must include the agreed fact there was no business being carried on, and therefore no entitlement to claim input tax credits and fuel tax credits. But the factual basis might also include the disputed allegation that the taxpayer never claimed the credits in the first place. If that allegation were made out, the assessment would necessarily be amended to show the taxpayer did not have any liability at all arising out of the transactions referred to in the BASs.

Where, as here, there is a dispute as to the factual basis of the decision which might affect the outcome, and the outcome has important consequences for the taxpayer, the taxpayer who wants to proceed with a review can be said to be dissatisfied. It followed the Tribunal had jurisdiction to deal with the application for review.

Re Van Gestel and FCT [2014] AATA 396 (Bernard J McCabe SM, 20 June 2014).

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